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Ray v. Industrial Claim Appeals Office of the State of Colorado7/14/2005
ORDER SET ASIDE AND CASE REMANDED WITH DIRECTIONS
Marquez, J., concurs Graham, J., dissents
Claimant, Carnell Ray, seeks review of a final order of the Industrial Claim Appeals Office (Panel) determining that the computation of his average weekly wage (AWW) should not include the cost of health insurance because he did not actually pay to continue coverage after his employment was terminated. We set the order aside and remand for further proceedings.
Claimant suffered serious head injuries in October 2001 as a result of a work-related automobile accident, and New World Van Lines of Colorado (employer) filed a general admission of liability for temporary total disability benefits. Claimant was terminated from his job in January 2002 and was notified that he could continue his employer's group health insurance coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), 42 U.S.C. § 300bb-1, et seq. (2000), by paying $602.75 per month. Although claimant elected to continue coverage, he did not actually make the payment required to purchase coverage.
One issue addressed at a May 2004 hearing was claimant's contention that the AWW should include the cost of health insurance benefits under COBRA, even though he did not actually pay for them. The administrative law judge (ALJ) denied the request to include the cost of the COBRA benefits, and, on review, the Panel affirmed.
Claimant contends that the plain and ordinary meaning of § 8-40-201(19)(b), C.R.S. 2004, requires the ALJ to add the cost of health insurance to the determination of his AWW. We agree.
The AWW of an injured employee must be used as the basis for computing compensation payments. Section 8-42-102(1), C.R.S. 2004. AWW is to be calculated based upon the monthly, weekly, hourly, or other "wages" and remuneration which the injured employee was receiving at the time of the injury. Section 8-42-102(2), C.R.S. 2004. Section 8-40-201(19)(b) provides:
The term "wages" shall include the amount of the employee's cost of continuing the employer's group health insurance plan and, upon termination of the continuation, the employee's cost of conversion to a similar or lesser insurance plan, and gratuities reported to the federal internal revenue service by or for the worker for purposes of filing federal income tax returns and the reasonable value of board, rent, housing, and lodging received from the employer, the reasonable value of which shall be fixed and determined from the facts by the division in each particular case, but shall not include any similar advantage or fringe benefit not specifically enumerated in this subsection (19). If, after the injury, the employer continues to pay any advantage or fringe benefit specifically enumerated in this subsection (19), including the cost of health insurance coverage or the cost of the conversion of such health insurance coverage, such advantage or benefit shall not be included in the determination of the employee's wages so long as the employer continues to make such payment.
Thus, under the statute, the term "wages" includes "the amount of the employee's cost of continuing the employer's group health insurance plan and, upon termination of the continuation, the employee's cost of conversion to a similar or lesser insurance plan" (emphasis added). The express statutory language does not require proof that the claimant actually purchased the coverage.
The interpretation of a statute is a question of law subject to de novo review. Hendricks v. People, 10 P.3d 1231 (Colo. 2000). Although we "give considerable weight to an agency's interpretation of its own enabling statute,"
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